(A)
The
department may take any or all of the following actions with respect
to any violation of this chapter, order issued hereunder, any pretreatment
standard or requirement, of any permit condition or denial or any
other local, state or federal law or regulation affecting discharge:
(2)
Issue an emergency cease and desist order for the suspension of any
activity by the user, whenever, in the opinion of the director, the
emergency suspension is reasonably necessary to stop an actual or
to prevent a threatened discharge which may endanger the health or
welfare of persons, or may potentially interfere with the operation
of the POTW:
(a)
The director shall have hand-delivered or shall send the notice of
emergency suspension by certified mail to the user and/or the owner
at the address set forth on the permit application.
(b)
The notice of emergency suspension shall set forth the nature of
the emergency, the reasons for the emergency suspension and a request
that the user and/or owner show cause why the emergency suspension
should not remain in effect.
(c)
Any user notified of an emergency suspension of its wastewater permit
shall immediately stop or eliminate its discharge to the POTW. In
the event of a user’s failure to immediately comply with the
suspension order, the department will take such steps as deemed reasonable,
including but not limited to immediate severance or blockage of the
sewer connection.
(3)
Issue an administrative compliance order setting forth the terms
and conditions of any action reasonably required by the department
for the user’s continued discharge, including permit modification;
(4)
Suspend the user’s discharge permit;
(5)
Terminate the user’s discharge permit;
(6)
Modify the user’s discharge permit;
(7)
Terminate the user’s service;
(8)
Impose fines on the user; and/or
(9)
Seek criminal penalties and/or imprisonment.
(B)
Before
initiating any department action, except for those department actions
set forth herein, the department shall afford the user and/or owner
the following rights to pre-action administrative review:
(1)
(a)
The department shall issue written notice of the proposed action
or permit application denial and shall have hand-delivered or shall
send the notice by certified mail to the user and/or owner at the
address set forth on the permit application.
(b)
If the notice is sent by regular mail, it shall be deemed to be served
three days after being placed in the mail to the address shown on
the user’s application.
(c)
Whether or not the user and/or owner appears as noticed, immediate
enforcement action may be pursued following the hearing date.
(2)
The notice of proposed action shall set forth the proposed department
action, the reasons for the proposed action, and a request that the
user and/or owner show cause why the proposed action should not be
taken.
(3)
The user and/or owner wishing to participate in the pre-action administrative
review shall file with the director a written response to the notice
of proposed action within ten days after mailing of the notice of
proposed action. The response shall include the facts supporting the
user and/or owner’s position that the proposed action should
not be taken and shall also include any alternatives to the department’s
proposed action.
(4)
(a)
The owner and/or user may request a hearing on the proposed action
by filing a written request with the director within ten days of the
date of mailing of the notice of proposed action. If a hearing is
requested, it shall be set within 20 days of receipt of the request
and notice of the hearing shall be delivered to the user and/or owner
at least three days before the hearing.
(b)
If the notice is sent by regular mail, it shall be deemed to be served
three days after being placed in the mail to the address shown on
the user’s application.
(5)
If the owner/user does not timely request a hearing, the director
shall make his or her determination based solely on the written response.
If no written response is filed,the user and/or owner shall be deemed
to have abandoned all rights to administrative review.
(6)
If a hearing is timely requested, the director shall conduct the
hearing or may appoint a hearing officer to make recommendations to
the director upon which the director’s written order will be
based.
(7)
The user and/or owner shall bear the burden of proving by the preponderance
of the evidence that the proposed department action should not be
taken.
(8)
(a)
The director shall issue a written order within ten days of the hearing,
or within ten days of the written response if no hearing is requested,
indicating the action which will be taken. The director’s written
order shall be considered final agency action for purposes of judicial
review and shall remain in effect during any appellate review process
unless otherwise ordered by the reviewing court.
(b)
If the user is not successful in obtaining a change in the proposed
county action, the director may assess the costs of the hearing process
to the user.
(C)
An
owner and/or user may request administrative review of any emergency
suspension order through the following procedures:
(1)
The user and/or owner wishing to seek administrative review shall
file with the department a written response to the notice of emergency
suspension within ten days of the date of mailing of the notice of
emergency suspension. The response shall include the facts supporting
the user’s and/or owner’s position that the emergency
suspension should not remain in effect and shall also include all
plans to rectify the emergency.
(2)
The owner and/or user may request a hearing on the proposed action
by filing a written request with the department within ten days of
the date of mailing of the notice of proposed action. If a hearing
is requested, it shall be set within 20 days of receipt of the request
and notice of the hearing shall be delivered to the user and/or owner
at least three days before the hearing. If the notice is sent by regular
mail, it shall be deemed to be served three days after being placed
in the mail to the address shown on the user’s application.
(3)
If the owner/user does not timely request a hearing, the department
shall make its determination based solely on the written response.
If no written response is filed, the user and/or owner shall be deemed
to have abandoned all rights to administrative review and the emergency
suspension shall become permanent.
(4)
If a hearing is timely requested, the department shall conduct the
hearing or may appoint a hearing officer to make recommendations to
the department upon which the department’s written order will
be based.
(5)
The user and/or owner shall bear the burden of proving, by the preponderance
of the evidence, that the emergency suspension should not remain in
effect.
(6)
(a)
The department shall issue a written order within ten days of the
hearing, or within ten days of the written response if no hearing
is requested, indicating the action which will be taken.
(b)
The department’s written order shall be considered final agency
action and shall remain in effect during any appellate review process
unless otherwise ordered by the reviewing court. The department may
assess the costs of the hearing process if the user is not successful.
(7)
The emergency suspension order shall remain in effect during the
pendency of the hearing and during any appellate review process unless
otherwise ordered by the reviewing court.
(D)
A user
and/or owner may seek review by the department of any condition or
term of a permit, modification of a permit, refusal to issue a permit
or to modify a permit or order issued with respect to a permit or
of any fine assessed by the director, through the following administrative
procedure.
(1)
The user and/or owner shall file a petition for review with the department
within 30 calendar days of the action sought to be reviewed.
(2)
The petition shall contain a description of any department action
being appealed, the facts supporting the appeal and the proposed outcome.
(3)
If the petition seeks review of any fine, evidence of full payment
of the fine shall accompany the petition for review.
(4)
The owner and/or user may request a hearing on the proposed action
by filing a written request with the department within 30 days of
the date of mailing of the notice of proposed action. If a hearing
is requested, it shall be set within 60 days of receipt of the request
and notice of the hearing shall be delivered to the user and/or owner
at least 20 days before the hearing. If the notice is sent by regular
mail, it shall be deemed to be served three days after being placed
in the mail to the address shown on the user’s application.
(5)
If the owner/user does not timely request a hearing, the department
shall make his or her determination based solely on the written petition.
(6)
The user and/or owner shall bear the burden of proving by a preponderance
of the evidence any ruling which it wants the department to issue.
(7)
If a hearing is timely requested, the department shall conduct the
hearing or may appoint a hearing officer to make recommendations to
the department upon which the department’s written order will
be based.
(8)
(a)
The department shall issue a written order within 30 days of the
hearing, or within 30 days of the written response if no hearing is
requested, indicating the action which will be taken.
(b)
The department’s written order shall be considered final agency
action and shall remain in effect during any appellate review process
unless otherwise ordered by the reviewing court.
(c)
The department may assess the costs of the hearing process if the
user and/or owner is not successful. Any fine, or portion thereof,
which is not sustained by the department shall be refunded to the
user and/or owner within 30 days of the department’s order,
together with interest at the legal rate.
(9)
The department action sought to be reviewed shall remain in effect
during the pendency of the hearing and during any appellate review
process unless otherwise ordered by the reviewing court.
(Ordinance 1998-16 adopted 12/8/98)
(A)
Whenever
a user has violated or continues to violate the provisions of this
chapter or orders issued hereunder, the department shall seek injunctive
relief to the extent allowed by law.
(B)
Violations
of any provision of this chapter are subject to enforcement pursuant
to NMSA, section 4-37-3, and as otherwise allowed by law.
(Ordinance 1998-16 adopted 12/8/98)
(A)
The
costs of transcribing any hearing, the charges of any hearing officer,
the costs of any copying or clerical work required for the hearing,
filing fees in an amount equal to that currently in effect in state
courts and the actual cost of county staff time required to attend
the hearing or perform any additional work in connection with the
hearing may be assessed against any person unsuccessful in a request
for administrative review.
(B)
The
department shall adopt a schedule of charges and make same available
to the public upon request.
(Ordinance 1998-16 adopted 12/8/98)
